705 F.2d 293 (8th Cir. 1983), 82-1168, United States v. Apker

Docket Nº:82-1168, 82-1169, 82-1201 and 82-1242.
Citation:705 F.2d 293
Party Name:UNITED STATES of America, Appellee, v. Gary D. APKER, Appellant. UNITED STATES of America, Appellee, v. Calvin DAVENPORT, Appellant. UNITED STATES of America, Appellee, v. Raymond GEARHART a/k/a
Case Date:April 19, 1983
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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705 F.2d 293 (8th Cir. 1983)

UNITED STATES of America, Appellee,


Gary D. APKER, Appellant.

UNITED STATES of America, Appellee,


Calvin DAVENPORT, Appellant.

UNITED STATES of America, Appellee,


Raymond GEARHART a/k/a "Buzzard," Appellant.

UNITED STATES of America, Appellee,


Janice FITZGERALD, Appellant.

Nos. 82-1168, 82-1169, 82-1201 and 82-1242.

United States Court of Appeals, Eighth Circuit

April 19, 1983

Submitted Dec. 15, 1982.

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[Copyrighted Material Omitted]

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Ronald D. Lahners, U.S. Atty., D. Neb., Thomas D. Thalken, First Asst. U.S. Atty., D. Neb., David A. Kubichek, Asst. U.S. Atty., D. Neb., Omaha, Neb., for appellee.

James S. Jansen, David Herzog, Omaha, Neb., Alan Caplan, San Francisco, Cal., Jack S. Nordby, John R. Wylde, Minneapolis, Minn., for appellants.

Before BRIGHT, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and McMILLIAN, Circuit Judge.

FLOYD R. GIBSON, Senior Circuit Judge.

Gary Apker, Calvin Davenport, Raymond Gearhart, and Janice Fitzgerald each appeals a conviction under 18 U.S.C. app. Sec. 1202(a)(1) (1976) for being a felon in possession of a firearm. They make two major arguments: (1) the searches which produced the firearms admitted against them were executed pursuant to warrants which were invalid under both the Fourth and First Amendments, and (2) they were prejudiced by the joinder of a conspiracy count with the counts from which they appeal.

We find that the warrants violated the Fourth Amendment particularity requirement, but that the joinder was not prejudicial. We also find that the firearms admitted against Apker, Davenport, and Gearhart were nevertheless properly admitted under an exception to the exclusionary rule

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and therefore their convictions are affirmed. The firearms admitted against Fitzgerald should have been excluded and therefore her conviction is reversed.

I. Facts

Apker, Davenport, and Gearhart are members of the Hells Angels of Omaha and Fitzgerald is the widow of a Hells Angels member. On February 18, 1981 a grand jury in the District of Nebraska returned a three-count indictment against the four appellants and six other persons. The indictment alleged that the indictees were members of the Hells Angels (or in Fitzgerald's case, an associate), and that as members they were involved in a conspiracy to distribute methamphetamine in violation of 21 U.S.C. Secs. 841(a)(1) and 846 (1976). The indictment charged that as part of the conspiracy the Hells Angels attempted to gain a monopoly on the methamphetamine traffic in Omaha and used threats, beatings, torture, and murder against persons who distributed methamphetamines not acquired from the Hells Angels. Pursuant to the indictment, arrest warrants were obtained.

On February 27, 1982, "indicia search warrants" also were obtained for premises alleged to be the residences of some of the indictees, including all four appellants. The indicia warrants did not authorize the seizure of contraband or fruits or instrumentalities of crime. Rather, they authorized the seizure of indicia of membership in the Hells Angels. All the indicia warrants were identical in their description of the things to be seized. The entire description is as follows:

A. Sleeveless leather and jean jackets with a Death's Head insignia with wings on the back with the notation "Hell's Angels" written above the Death's Head and the state that the party is a member of, in this case Nebraska, is written beneath the Death's Head symbol (commonly and hereafter referred to as "Hell's Angels's Colors").

B. A metal belt buckle which states "Hell's Angels" on it.

C. Certain plaques, mirrors and other items which give the names of members of the Hell's Angels.

D. Photographs which depict the association of members of the Hell's Angels.

E. Telephone books with telephone numbers listed therein of members of the Hell's Angels, which includes local and national members.

F. Certain papers relating to Club activities, expenditures, financial records, Club rules and regulations.

G. Red T-shirts with "Hell's Angels" printed on them.

The affidavit supporting the search warrants said the indicia were necessary because proving the indictees' associations with the Hells Angels was necessary to prove their involvement in the alleged Hells Angels drug conspiracy.

The arrest and search warrants were executed at approximately 7:00 a.m. on February 28, 1981, by teams of federal and state law enforcement officers. Before the warrants were served the officers met at the Omaha police headquarters and were briefed as to the execution of the warrants. They were told that appellants had felony convictions and therefore could not lawfully possess firearms. They were told to be on the lookout for guns and drugs. They were also told that a judge would be standing by to execute state search warrants if drugs were found.

Apker, Davenport, and Gearhart were served at residences they were apparently sharing with a woman. 1 Guns and drugs were found at each residence. Fitzgerald was served at a residence where another woman was present. Guns, but not drugs, were found at her residence. The discovery of the drugs lead to state search warrants which were executed the same morning. On April 23, 1981, the superseding indictment,

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under which appellants were tried, charged all four appellants with being felons in possession of firearms and charged Apker, Davenport, and Gearhart with possession of a controlled substance with intent to distribute.

Jury selection for the trial of appellants and two others 2 began on September 2, 1981, and the government's opening statement came one month later. On November 3, 1981, the district court 3 dismissed the conspiracy counts. The remaining counts were submitted to the jury on November 12, 1981, and the verdicts were returned on November 25, 1981. Apker, Davenport, and Gearhart were found guilty of simple possession of a controlled substance, rather than possession with intent to distribute. Each received a sentence of one year for these counts and they do not appeal the drug convictions. All four appellants were found guilty of being a felon in possession of a firearm and received two-year sentences. It is the firearm convictions that are being appealed. 4

II. Validity of the Indicia Warrants

Appellants argue that the indicia warrants are invalid because they violate both the Fourth Amendment and the First Amendment. In evaluating these claims we are largely writing on a clean slate. Counsel have informed us that to the best of their knowledge indicia warrants have been used only once before their use in the instant case. These were obtained in June 1979 in connection with the prosecution of California Hells Angels members under the Racketeer Influenced and Corrupt Organizations Act (RICO). 18 U.S.C. Sec. 1962(c) (1976). One appellate court decision discusses the indicia warrants, United States v. Chesher, 678 F.2d 1353 (9th Cir.1982), but it was decided on an issue not raised in the instant case. The Chesher court ruled that the defendant was entitled to a hearing on the issue of whether probable cause was based on a recklessly false statement, and that the indicia warrant issued was not justified without finding proof of his current associations with the Hells Angels. Id. at 1362-64. Another case dealing with the same set of indicia warrants involved in Chesher is now pending before the Ninth Circuit. United States v. Rubio, 703 F.2d 1124 (9th Cir.1983).

A. Fourth Amendment.

Appellants' Fourth Amendment arguments can be put into four groups: (1) indicia of membership in a legal organization, i.e., the Hells Angels, cannot be the proper subject of a search because there is not a sufficient nexus between the evidence sought and the crime being investigated, (2) the warrants had the effect of being general warrants because they failed to describe the things to be seized with sufficient particularity, (3) the affidavit supporting the application for the search warrants did not establish probable cause to believe that there would be indicia of membership in the Hells Angels at the searched premises, and (4) the indicia warrants were obtained as a pretext to search for guns and drugs. 5 We find that there was a sufficient nexus between the indicia of membership in the Hells Angels Motorcycle Club of Nebraska (Hells Angels) and the crime charged, there was probable cause for the warrants, and the warrants were not pretextual. However, we find that in light of the heightened scrutiny required by the First Amendment interests involved, the warrants failed to describe the items to be seized with sufficient

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particularity, and therefore the warrants were invalid under the Fourth Amendment.

1. Indicia as the Valid Subject of a Search: The Nexus Requirement.

Appellants' first Fourth Amendment issue is whether there is a sufficient nexus between membership in a legal organization (the Hells Angels) and criminal activity so as to justify a search for indicia of membership. Appellants argue there was no nexus between membership and illegal activity. The government argues that the indictment's allegation that one of the purposes of the Hells Angels was a criminal conspiracy establishes a nexus between membership and criminal activity.

The rule is well settled that police searches are not limited to instrumentalities or fruits of crime or contraband. Police can search for "mere evidence" of crime if there is a nexus between the item to be seized and criminal behavior. Warden v. Hayden, 387 U.S. 294, 307, 87 S.Ct. 1642, 1650, 18 L.Ed.2d 782 (1967). A magistrate must determine whether...

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